The Obama Administration and the American Indian

By Andrew Cohen

The White House's policy towards American Indians is better than in past administrations, but still not consistently good enough

Above: President Barack Obama presents the Medal of Freedom to Joe Medicine Crow - High Bird during a ceremony in Washington, DC on August 12, 2009

Earlier this month, I wrote a piece here at The Atlantic about the ways in which the three branches of federal government this year have handled matters of great importance to American Indians. I criticized the Senate-- and Oklahoma Sen. Tom Coburn in particular-- for failing to act on the judicial nomination of worthy native American candidate Arvo Mikkanen. I blasted the Supreme Court for its failure to protect Native American interests in a trust case. And I chided the Obama Administration for focusing upon eagle feathers when there are so many other pressing issues of interest to the tribes.

I must have struck a nerve because within a day or so of posting the piece I had heard directly from three different tribunes within the Administration, each of whom wrote to suggest to me that I had been too harsh in my criticism of executive branch policy toward Native Americans. I heard from a "Director of Specialty Media" at the White House, who forwarded to me this link titled: "Achieving a Brighter Future for Tribal Nations." I heard from the Justice Department, which forwarded to me this link titled: "Tribal Justice And Safety." And I heard from the Interior Department, which forwarded to me this link to a glowing Associated Press story about new administration rules designed to make it easier for American Indians and Native Alaskans to "expedite home building and energy development."

Having done little in my life to merit credit as a tribune for native peoples, I thought the most prudent response to the Administration's earnest reaction would be to ask American Indians themselves whether they believe the current crop of politicians in Washington are doing right by the tribes. So I reached back out to Tim Pleasant, co-director of the Indian Law program at the University of Tulsa College of Law, and to G. William Rice, co-director of the Native American Law Center, to informally canvas the native community. I asked them both to ask of their friends and colleagues the same question: Is the Obama Administration as popular with American Indians as the Associated Press story suggested?

In turn, Pleasant and Rice did a thorough job (within the time constraints I gave them) of reaching out to tribal leaders and others who focus their talents and attention on issues of import to native peoples. The consensus response to my question is that there is little consensus. But the details of the responses are interesting. Here are some of the reactions (some of the commentators with negative perceptions refused to be quoted, even anonymously, some because they feared the sort of political retribution they believe has occurred in the past against Native Americans). The links in the quotes below are mine-- I added them for reference.

From Matthew Fletcher, an associate professor at Michigan State University College of Law and
Director of the Indigenous Law and Policy Center

I
like the people in the Administration and I know they're doing their best. But
much of what they're doing is rolling back some of the past administration's
anti-tribal moves or tribe-specific legislation. The next administration that's
not so friendly to tribal interests can roll back a lot of those initiatives.
But there's not much the Administration can do in the big picture... I am AMAZED, however, by the Department of Justice's
reversal on tribal criminal prosecutorial authority. Even if the SAVE Native
Women Act [federal legislation introduced last month] crashes and burns that position alone makes this Administration my
favorite.

One
thing I'd like to see is a reversal of the positions the Dept. of Justice takes
on tribal trust claims. Every time the government denies its trust
responsibility in one case, it undercuts its own positions in land claims and
other cases before the Supreme Court. Yeah, the Obama Administration settled
Cobell, but it also wiped out many of the tribal claims in Tohono O'odham
Nation and undercut tribal arguments in Jicarilla Apache Nation. I suppose this
criticism isn't really fair to the people in the Administration, but denial of
the trust responsibility is a denial of property rights. Plain and simple.

From another anonymous source:

I,
of course, being the hardcore Democrat... the
Presidential appointees in Indian affairs score higher than any other
administration to date. We have our first Native American Solicitor for
Secretary Salazar! This admin [removed some] anti-Indian career
employees... For the first time since the 2000 Bush Administration,
Cobell and Osage trust litigation have been settled along with numerous
longstanding water rights issues. It is indeed a pleasure to... know
the White House liaisons as well. And certainly at the top of the list
for tribes, Obama admin is moving along the trust acquisition applications that
have been sitting throughout the Bush admin, who had a "policy" of
downsizing the trust responsibility mainly through not approving more lands
into trust. I also can speak for the treatment of tribes and NA employees
while at Interior as I had a front seat view of how they and myself were
unprofessionally treated [by former administrations].

From Alicia Seyler, a Native American attorney in Oklahoma:

My only comment would be that a "Justice Department for Indians" would be a good idea. Other than that, most Indians on the ground have very little faith or trust in the [Interior] Department, irrespective of the political administration.

From another anonymous commenter:

[Here is an] issue that continues despite which President is in office or which Party
controls the Federal Agencies. The Fiduciary Responsibility of the Federal
Government toward each federally recognized tribe is biased and unfair when
various elements of a tribe are included into the calculation formula utilized
to evaluate issues and differences between two tribes...

These
elements continue to influence decisions between the Federal Agencies and some
tribal Governments. The less wealthy tribes are not as influential as the
wealthy tribes are. Therefore the Government should insure both tribes are
respected and treated as equals, not one being a lower subordinate organization
of another tribal organization because of its enormous enrollment numbers, or
wealth. Congress should insure and guarantee that all tribes that have federal
recognition are treated equally and given the same chance to serve their
members.

Professor Rice, who describes himself as a lifelong Republican:

I was particularly pleased
with President Obama's decision that the US would embrace the Declaration on
the Rights of Indigenous Peoples though I am now anxious to see concrete steps
taken to bring federal law and policy more into compliance with its
principals. While this administration has worked hard to process the huge
backlog of trust land applications that had accumulated in the last several
administrations, it has not taken steps, so far as I know, to modify the
process to make it less onerous to the tribes or to put that authority into the
hands of the tribes for on reservation acquisitions as federal law apparently
allows.

Thus, I think the Obama administration has overall done well in
the Indian context as a Democratic administration and should be praised for what
they have done. Unlike most Democratic administrations, it has done more
than provide funds for programs, and has taken some steps to return
governmental authority and decision making to tribes. However, not enough
has been done, and often the approach taken has been the most difficult way to
achieve the end desired.

And, finally, from Professor Pleasant:

One thing that I'd like in
particular to point out - there are a number of very smart and serious,
dedicated people out working in the Indian law field who do their bit every day
to try and improve things for Native Americans, and they, whether themselves
Native American or not, aren't waiting on the Obama Administration, or anyone
else, to do it for them. They're out there building tribal court systems,
or acting as victims' advocates in domestic violence cases, or the like, and
with little or no help from the federal government. This is not a field
where you can fight to change the status quo and expect many victories.
But as a wiser many than myself once observed, the battle most worth
fighting is often the one that you don't think you can win.

So here's where we seem to be on American Indian policy and the Obama Administration as 2011 comes to a close: Better than it has been, with gusts up to good on occasion, but still not consistently good enough. Just ask the good folks who are pushing the SAVE Native Women Act. Or, better yet, just ask Arvo Mikkanen, who has been waiting ten months now to get a hearing before the Senate Judiciary Committee without so much as a peep of public support for his nomination from the White House.